11 EX. 780. BLYTH V.

TBE BIRMINGHAM WATERWORKS COMPANY 1047

reciting the title, confirming the lease, and empowering the person who for the time
being should be seised of or entitled to the reversion immediately expectant upon the
lease to sue. The question then is, whether the term of 100 years created by the son
under the power contained in his marriage settlement to raise a jointure for a second
wife, takes priority over the term of 600 years to raise portions for the younger
children of the first marriage. That is a settled point. In Sugden on Powers, vol. 2,
pp. 36, 38, 7th edit., it is said, " A power to create leases to take effect in possession
will control and overreach all the powers and estates in the settlement."(a) " The
same rule prevails when any other estate is authorised to be raised by a power, and
from the nature of the interest to be raised it is to take effect in possession or next
after the estate of the donee of the power. Therefore, jointures, like leases, will
supersede all the estates in the settlement which would prevent the jointress from
taking her jointure upon the death of her husband, which is the period at which it
should arise; for powers to jointure, like powers to lease, take precedence of all the
estates in the settlement, unless it be otherwise provided by the instrument creating
the power." He referred to Sandys v. Sandys (1 P. Wms. 706), Carter v. Carter (Mose.
365), and Reynolds v. Meyriclc (1 Eden, 48), there cited.
ALDERSON, B. In this case the question is, who is the [780] proper party to sue.
The Duke of Beaufort and the Marquis of Worcester, who made the lease, are both
dead. I think that the person in whom the term of 100 years is vested represents
them. There is another term of 600 years for raising portions for younger children.
According to the authorities, a term for raising a jointure takes precedence of a term
for raising portions for children. As long as the Duchess lives the present plaintiff
is entitled to sue. There must be judgment for the plaintiff.
MARTIN, B. I am of the same opinion. A lease is granted by the Duke and the
Marquis of AVorcester. What Mr. Ogle said would be true, if the demise stood alone.
The person entitled to sue would be the survivor or his heirs, though the reservation
of rent is to the person for the time being entitled to the reversion or remainder
immediately expectant upon the term granted by the lease. At common law the
right of action would not follow the limitations of the settlement. An Act of Parlia-
ment was passed confirming the lease, and enabling the person entitled to such
remainder or reversion to sue. The nature of things shews that the term created
under the power for securing the jointure for a second wife takes precedence of the
term for raising portions for the children of the first marriage. This term is vested
in the plaintiff, and he is enabled to sue by the express provision of the Act of
Parliament.
BRAMWELL, B. I am of the same opinion.
Judgment for the plaintiff.

[781] BLYTH V. T H E COMPANY OF PROPRIETORS OF THE BIRMINGHAM W A T E R -

WORKS. Feb. 6, 1856.—A water company having observed the directions of the
Act of Parliament in laying down their pipes, is not responsible for an escape
of water from them not caused by their own negligence.—The fact, that their
precautions proved insufficient against the effects of a winter of extreme coldness,
such as no man could have foreseen, is not sufficient to render them liable for
negligence.—Fire-plugs properly constructed having been inserted as safety-valves
in these pipes, in pursuance of their Act:—Semble, per Bramwell, B., that the
company are not liable for not removing accumulations of ice in the streets over
such plugs.
[S. C. 25 L. J. Ex. 212; 2 Jur. (N. S.) 333. Explained, Smith v. London and South
Western Railway, 1870, L. H. 6 C. P. 14; Madras Railway v. Carvetinagarum
(Zemindar), 1874, L. R. 1 Ind. Ap. 364.]
This was an appeal by the defendants against the decision of the judge of the
County Court of Birmingham. The case was tried before a jury, and a verdict found
for the plaintiff for the amount claimed by the particulars. The particulars of the
claim alleged, that the plaintiff sought to recover for damage sustained by the plaintiff

(a) Citing Talbot v. Tipper, Skin. 457; Doe v. Thomas, 9 B. & C. 2S8.

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 1048 BLYTH V. THE BIRMINGHAM WATERWORKS COMPANY 11 EX. 782.

by reason of the negligence of the defendants in not keeping their water-pipes and
the apparatus connected therewith in proper order.
The case stated that the defendants were incorporated by stat. 7 Geo. 4, c. cix.
. for the purpose of supplying Birmingham with water.
By the 84th section of their Act it was enacted, that the company should, upon
the laying down of any main-pipe or other pipe in any street, fix, at the time of laying
down such pipe, a proper and sufficient fire-plug in each such street, and should deliver
the key or keys of such fire-plug to the persons having the care of the engine-house
in or near to the said street, and cause another key to be hung up in the watch-house
in or near to the said street. By sect. 87, pipes were to be eighteen inches beneath
the surface of the soil. By the 89th section, the mains were at all times to be kept
charged with water. The defendants derived no profit from the maintenance of the
plugs distinct from the general profits of the whole business, but such maintenance
was one of the conditions under which they were permitted to exercise the privileges
given by the Act. The main-pipe opposite the house of the plaintiff was more than
eighteen inches below the surface. The fire-plug was constructed according to the
best known system, and the materials of it were at the time of the accident sound
and in good order. The apparatus connected with the fire-plug was as follows : —
[782] The lower part of a wooden plug was inserted in a neck, which projected
above and formed part of the main. About the neck there was a bed of brickwork
puddled in with clay. The plug was also inclosed in a cast iron tube, which was
placed upon and fixed to the brickwork. The tube was closed at the top^by a move-
able iron stopper having a hole in it for the insertion of the key, by which the plug
was loosened when occasion required it.
The plug did not fit tight to the tube, but room was left for it to move freely.
This space was necessarily left for the purpose of easity and quickly removing the
wooden plug to allow the water to flow. On the removal of the wooden plug the
pressure upon the main forced the water up through the neck and cap to the surface
of the street.
On the 24th of February, a large quantity of water, escaping from the neck of the
main, forced its way through the ground into the plaintiff's house. The apparatus
had been laid down 25 years, and had worked well during that time. The defendants'
engineer stated, that the water might have forced its way through the brickwork
round the neck of the main, and that the accident might have been caused by the
frost, inasmuch as the expansion of the water would force up the plug out of the neck,
and the stopper being encrusted with ice would not suffer the plug to ascend. One
of the severest frosts on record set in on the 15th of January, 1855, and continued
until after the accident in question. An incrustation of ice and snow had gathered
about the stopper, and in the street all round, and also for some inches between the
stopper and the plug. The ice had been observed on the surface of the ground for
a considerable time before the accident. A short time after the accident, the company's
turncock removed the ice from the stopper, took out the plug, and replaced it.
The judge left it to the jury to consider whether the company had used proper
care to prevent the accident. He thought that, if the defendants had taken out the
ice adhering to the plug, the accident would not have happened, [783] and left it to
the jury to say whether they ought to have removed the ice. The jury found a
verdict for the plaintiff for the sum claimed.
Field for the appellant. There was no negligence on the part of the defendants.
The plug was pushed out by the frost, which was one of the severest ever known.
The Court then called on
Kennedy for the respondent. The company omitted to takejsufficient precautions.
The fire-plug is placed in the neck of the main. In ordinary cases the plug rises and
lets the water out; but here there was an incrustation round the stopper, which
prevented the escape of the water. This might have been easily removed. It will
be found, from the result of the cases, that the company were bound to take every
possible precaution. The fact of premises being fired by sparks from an engine on
a railway is evidence of negligence; Piggott v. Eastern Counties Railway Company
(3 C. B. 229), Aldridge v. Great Western Railway Company.(b) [Martin, B. I held, in
a case tried at Liverpool, in 1853, that, if locomotives are sent through the country

(b) 3 M. & Gr. 515 ; 4 Scott, N. E. 156 ; 1 Dowl. N. S. 247, S. C.

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11 EX.784. TAME V. PROPRIETORS OF THE GRAND JUNCTION CANAL 1049

emitting sparks, the persons doing so incur all the responsibilities of insurers: that
they were liable for all the consequences, (c) I invited counsel to tender a bill of
exceptions to that ruling. Water is a different matter.] It is the defendants' water,
therefore they are bound to see that no injury is done to any one by it. An action
has been held to lie for so negligently constructing a hayrick at the extremity of the
owner's land, that, by reason of its spontaneous ignition, his neighbour's house was
burnt down : Vaughan v. Men-[7Si]-love (3 Bing. N. C. 468). [Bramwell, B. In that
case discussions had arisen as to the probability of fire, and the defendant was
repeatedly warned of the danger, and said he would chance it.] He referred to Wells
v. Ody (1 M. & W. 452). [Alderson, B. Is it an accident which any man could have
foreseen ?] A scientific man could have foreseen it. If no eye could have seen what
was going on, the case might have been different; but the company's servants could
have seen, and actually did see, the ice which had collected about the plug. It is of
the last importance that these plugs, which are fire-plugs, should be kept by the
company in working order. The accident cannot be considered as having been caused
by the act of God : Siordet v. Rail (4 Bing. 607).
ALDERSON, B. I am of opinion that there was no evidence to be left to the jury.
The case turns upon the question, whether the facts proved shew that the defen-
dants were guilty of negligence. Negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do. The defendants might have been liable for negligence, if, uninten-
tionally, they omitted to do that which a reasonable person would have done, or did
that which a person taking reasonable precautions would not have done. A reasonable
man would act with reference to the average circumstances of the temperature in
ordinary years. The defendants had provided against such frosts as experience would
have led men, acting prudently, to provide against; and they are not guilty of negli-
gence, because their precautions proved insufficient against the effects of the extreme
severity of the frost of 1855, which penetrated to a greater depth than any which
ordinarily occurs south of the polar regions. Such a state of circumstances constitutes
a contingency against [785] which no reasonable man can provide. The result was
an accident, for which the defendants cannot be held liable.
MARTIN, B. I think that the direction was not correct, and that there was no
evidence for the jury. The defendants are not responsible, unless there was negli-
gence on their part. To hold otherwise would be to make the company responsible
as insurers.
BRAMWELL, B. The Act of Parliament directed the defendants to lay down pipes,
with plugs in them, as safety-valves, to prevent the bursting of the pipes. The plugs
were properly made, and of proper material; but there was an accumulation of ice
about this plug, which prevented it from acting properly. The defendants were not
bound to keep the plugs clear. It appears to me that the plaintiff was under quite
as much obligation to remove the ice and snow which had accumulated, as the defen-
dants. However that may be, it appears to me that it would be monstrous to hold
the defendants responsible because they did not foresee and prevent an accident, the
cause of which was so obscure, that it was not discovered until many months after the
accident had happened.
Verdict to be entered for the defendants.

[786] TAME V. THE COMPANY OF PROPRIETORS OF THE GRAND JUNCTION

CANAL. Feb. 6, 1856.—By stat. 33 Geo. 3, c. lxxx., the Grand Junction
Canal Company were empowered to take tolls for the passage of manure between
Braunston and Brentford. By s. 97, persons occupying lands through which the
canal passed might carry manure without payment. By stat. 34 Geo. 3, c. xxiv.,
for making a cut to Buckingham, the powers and authorities mentioned in the
former Act were to be exercised by the company and by the owners of lands on
the new cut, as if re-enacted, and the like exemptions were to be allowed. By
35 Geo. 3, c. xliii., reciting the first-mentioned Act, the company were empowered

(c) See Lambert v. Bessey, T. Raym. 4:22; Scott v. Shepherd, 3 Wils. 403. Probably,
an action of trespass might have been brought.

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